Personal Injury Case Award

Barcan Woodward wins “Outstanding Case” award

Barcan Woodward has received further recognition for its lead role in a highly significant decision which represents a victory for justice for all severely injured Claimants.

The Thompstone group of cases won the “outstanding case of the year” award at Proclaims Personal Injury Awards 2008.

The group of three cases included:

RH v University Hospitals Bristol NHS Foundation Trust.

Richard Barcan represented the Claimant in this case which was one of three selected to go forward to the House of Lords and was due to be heard in October 2008 before the Appellant withdrew its appeal in June 2008.

One of the agreed terms of the withdrawal of the appeal to the House of Lords was that the three cases be remitted to the High Court to determine the final form of Order that should apply in each case which would form a model to be used in future NHS cases.

The three remitted cases came from Mackay J (the first instance Judge in RH) on 30th July 2008 and he handed down two Judgments on 31st July 2008, one specific to the three remitted cases and the other dealing with the Model Order which was proposed by the parties after considerable discussion between them and input from Richard Cropper (Independent Financial Advisor), Dr Victoria Wass (Labour Economist) and Prof. Gerald Makepeace (Statistician) instructed by the Claimants to assist the court with these highly technical issues.

In his Judgment, Mackay J endorsed in forceful terms the use of this model in all future Periodical Payment cases against NHS Defendants.

While making it clear that he did not purport to dictate to his fellow Judges, Mackay J said that he believed that the Model Schedule to the order should be followed in all future NHSLA cases unless there was a good reason not to do so and he sounded a warning that parties could be at risk of adverse costs orders in these circumstances if they sought to devise their own versions.

He also recommended that parties in non NHS personal injury cases give careful thought to adopting those parts of the Model that were not NHS specific and encouraged dialogue between all interested parties with a view to a model Schedule appearing in due course in the Practice Direction to CPR 41.

The conclusion of this group of cases represents a significant impact in the field of periodical payments and personal injury damages.

Challenging circumstances

This case involved a highly specialist field outside the normal areas of knowledge of experienced personal injury lawyers, in that it involved a detailed understanding of labour economics and statistics.

The legal teams for all the cases involved in this matter had to liaise very closely.  One of the outstanding features of this case was the team work between all the parties in enabling this very significant outcome to be achieved.

The resources required to prepare and present the arguments in these cases were considerable, putting a significant strain on the resources of those involved.  Nevertheless the attention to details to ensure that a suitable model for use in future cases was developed was superb.

The funding of these cases and the appeals was important, the costs being very significant.  One of the factors which greatly assisted in bringing these cases forward was that the legal team in RH negotiated an agreement with the NHSLA that it would pay the Claimant’s costs of the indexation issues in that case, whether the Claimant won or lost in the Court of Appeal or the House of Lords.  This was negotiated because of the NHSLA’s wish to bring RH into the Thompstone group, against the Claimant’s wishes.  This allowed the other cases to shelter to an extent behind RH because of its costs protection.  It meant that the RH legal team could concentrate on fighting the issues raised at each stage in the knowledge that, whatever the outcome, the client would not be at risk for the very considerable legal costs being incurred.  This was a highly unusual costs agreement, which was of significant value in enabling this test issue to be properly resolved, but does indicate what may be possible to negotiate in cases where there are genuine issues of wider public importance.

Impact on the wider community

This decision has a very significant impact on all major injury cases where there is a significant future care claim.  It means that periodical payments represent a real option for those Claimants affected, because the risk of the value of such payments falling below the actual cost of care has been removed.  Without this result the reality is that periodical payments would probably never have become a realistic choice for Claimant’s, certainly in clinical negligence cases.

It remains to be seen as to the extent to which the personal injury industry generally decides to support periodical payments,but if they do not wish to do so, the likelihood is that insurers will have to pay a premium to agree a lump sum settlement to ensure the value of an ward properly reflects the likely increase in the cost of future care.

Please click here to access the model order